Afran Transport Co. v. United States

decided: December 1, 1970.

AFRAN TRANSPORT COMPANY, AS OWNER OF THE STEAMSHIP NORTHERN GULF, PLAINTIFF-APPELLEE,v.UNITED STATES OF AMERICA, DEFENDANT-APPELLANT. BRITISH AMERICAN OIL CO., LTD., PLAINTIFF-APPELLEE, V. UNITED STATES OF AMERICA, DEFENDANT-APPELLANT, AND S.S. NORTHERN GULF AND AFRAN TRANSPORT COMPANY, CLAIMANTS-THIRD PARTY DEFENDANTS-APPELLEES

Medina, Waterman and Feinberg, Circuit Judges.

Author: Medina

MEDINA, Circuit Judge:

This case arises out of the stranding on November 25, 1963 of the supertanker Northern Gulf on the westerly tip of West Cod Ledge Rock in Casco Bay, approaching the harbor of Portland, Maine. There was considerable damage to the vessel, a good part of her cargo was lost and the Maine shoreline suffered extensive pollution. Judge Tenney's opinion is reported at 309 F. Supp. 650. The underlying cause of the stranding was the displacement of West Cod Ledge Rock Buoy No. 2 a distance of 350 to 400 yards, bearing 097 3/4 degrees from its charted position. The Government does not dispute its fault in failing for a period of some eight months to discover the shifting of the buoy and to restore it to the proper position, and the sole issue before us is whether Judge Tenney correctly held the Government solely at fault, exonerating the pilot and the officers of the vessel.

In view of the comprehensiveness of Judge Tenney's excellent opinion we shall condense our statement of the facts of the case, and make it just sufficient to serve as an introduction to the discussion, in the concluding portion of this opinion, of the Government's claim that the failure of the pilot and the ship's officers to ascertain the exact location of the displaced buoy prior to the stranding by utilizing "bearings from fixed objects and aids to navigation on shore" (Code of Federal Regulations, Title 33, Navigation and Navigable Waters, Section 62.25-55) [1970]*fn1 constitutes such a statutory fault as to make applicable the drastic rule of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L. Ed. 148 (1873). If this rule were applicable the Northern Gulf would be under the burden of proving that the failure to take bearings not only might not or probably did not but that it could not have contributed to the stranding. Judge Tenney rejected this argument and held the vessel bound only to prove that the stranding was caused by the fault of appellant and that there was no contributing negligence on the part of the pilot or the officers of the Northern Gulf. We agree with Judge Tenney and affirm the decree appealed from.

I.

On November 25, 1963 weather conditions in Casco Bay were just about perfect. It was a bright, clear day with almost unlimited visibility. The current was at the last two hours of the ebb tide and neither the current nor the moderate wind from the NW affected navigation. All the many lighthouses and various types of buoys marking the rocks and ledges of this characteristic portion of the coast of Maine were plainly visible. Under these favorable conditions the Northern Gulf, on a voyage from Bandar, Mashur, in the Arabian Gulf, to Portland with a cargo of 261,429 U.S. barrels of crude oil, on a course 276 degrees true brought Portland Lightship abeam 700 yards off her port side. The compulsory state pilot came on board from a pilot boat stationed about 1/2 mile NW of the Lightship; and he took the con on the bridge with a full and proper complement of the vessel's officers.

From the bridge of the Northern Gulf, Captain Harlan L. Wadleigh, the pilot, had a complete and quite satisfactory view of the broad expanse of water he was to traverse before closing in on Portland Harbor. The course he intended to take, and the one he often had taken before, in the performance of his customary duties, was to pass between the bell buoy marking Corwin Rock and West Cod Ledge Rock Buoy No. 2, perhaps somewhat favoring the starboard side of this opening to facilitate a gradual turn to starboard to pass West Cod Ledge Rock Buoy No. 2 and get in position for a new course passing the buoys marking Pine Tree Ledge and Jordan Reef to port and Witch Rock to starboard. There was no occasion to take any bearings and by use of what is called his "seaman's eye" he brought the vessel to a 315 degree true course with Portland Head Light fine on the port bow and West Cod Ledge Rock Buoy No. 2, 15 degrees true on the starboard bow. The vessel remained on this 315 degree course for about 12 minutes and Captain Wadleigh intended to pass about 1/4 mile off West Cod Ledge Rock Buoy No. 2. It is vigorously asserted by the Government that, had bearings been taken and plotted during the progress on this 315 degree course, the pilot would have known that he was proceeding into danger, which, we think, is another way of saying that he would have been alerted to the displacement of the buoy. But Judge Tenney's finding to the contrary is supported by the proofs, including the charts, especially when it is taken into consideration that the displacement of the buoy from its charted position, a mere 350 or 400 yards in a wide expanse of open water, was not to the NE and over the middle shoal of West Cod Ledge but on the bearing 097 3/4 degrees, above mentioned.

There was no occasion for taking and plotting any bearings to obtain fixes while the vessel was on the 315 degree course, and had any such bearings been taken and plotted they would have shown that the Northern Gulf was on a safe course.

When the West Cod Ledge Rock Buoy No. 2 came off the starboard beam Captain Wadleigh began his turn to starboard. From that time until the vessel fetched up she was on a swing, her forward progress until she steadied up on her new course being something in the neighborhood of 4 knots. Her position was constantly changing and it was manifestly impossible to take a running fix in time to avoid the stranding. Judge Tenney so found and we agree with this finding and all the others set forth in the specific findings and in his opinion.

II.

So we turn to the critical subject of whether the pilot or the officers of the vessel had any reason to suspect that West Cod Ledge Rock Buoy No. 2 was off station. For, in the absence of some suspicious circumstance or notice, navigators are entitled to rely upon the representations made in the Government charts relative to the location of the buoys. See The Clevelander, 83 F.2d 947, 949 (2d Cir. 1936); Trinidad Corp. v. S.S. Sister Katingo, 280 F. Supp. 976, 977 (S.D.N.Y.1967); Chesapeake & O. Ry. v. United States, 1964 A.M.C. 2651, 2654 (E.D.Mich.), amended, 1966 A.M.C. 1883, 1884 (E.D.Mich.1962) (not otherwise reported).

It is clear, to begin with, that even the most experienced navigator fully familiar with local conditions could not detect by the use of his eyesight that this displacement of 350 to 400 yards had taken place. There was no point of reference such as existed in some of the cases to which we shall later refer. The reef itself was too far below the surface of the water to disturb the even sequence of the waves or give any other notice of its location.

Some lobstermen using their fathometers in connection with the hauling of traps had discovered the displacement of the buoy some eight months prior to the stranding. But the lobstermen had not notified the Coast Guard. Indeed, the constant reading of the Coast Guard publications by Captain Wadleigh, including the daily memoranda issued on Saturdays in the form of mimeographed sheets, and occasional reports by landline phone calls from the Coast Guard base at South Portland, was of no avail as none of the Coast Guard publications or notifications had made any reference to the displacement of this buoy.

The explanation given by Captain Wadleigh for his reliance upon the buoy was accepted by Judge Tenney and it appears to us to be in every ...

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